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HomeMy WebLinkAboutNorth Crossing LLC-10/17/2016ASSIGNMENT OF MASTER DEVELOPMENT AGREEMENT THIS ASSIGNMENT OF MASTER DEVELOPMENT AGREEMENT (referred to herein as "Agreement") dated the 17th day of October , 2016, by North Crossing, LLC ("Developer"), in favor of the University of Iowa Community Credit Union, whose principal business address is 2355 Landon Road, North Liberty, Iowa 52317 ("Lender") is being made to provide security to Lender in consideration of making certain loans to Developer and is acknowledged and agreed to by the City of Waterloo, Iowa ("City"). RECITALS A. Developer by its promissory note of even date herewith given to Lender in the amount of $ 2,947,194.36 (the "Note") with interest from the date thereof at the rates set forth in the Note (the indebtedness evidenced by the Note, together with such interest accrued thereon, shall collectively be referred to as the "Loan"), principal and interest to be payable in accordance with the terms and conditions provided in the Note. B. North Crossing, LLC entered into a Master Development Agreement dated January 25, 2016, by and between the City as may be amended (the "Development Agreement"), attached hereto as Exhibit A, and incorporated by reference herein. C. The Developer desires to assign all of its right, title, and interest in the Development Agreement to Lender as additional security for the Loan. E. The Lender hereby desires to assume all of Developer's right, title, interest to the Development Agreement. AGREEMENT For good and valuable consideration the parties hereto agree as follows: 1. Assignment. For valuable consideration received, the adequacy and sufficiency of which is duly acknowledged by Developer, Developer does hereby assign, transfer, set over, deliver and convey to Lender as security for the Loan made to Assignor, all of its rights, titles, interest, privileges, powers, benefits and remedies set forth in the Development Agreement, including, without limiting the foregoing, payments, tax rebates and option rights. Said assignment is to automatically become a present, unconditional assignment, at Lender's option, in the event of a default by Developer under the Note, or documents securing the Note and the failure of Developer to cure such default within any applicable grace period. 2. Consent and Agreement by City: Subordination. City hereby acknowledges and consents to this Assignment and agrees that City will act in conformity with the provisions of this Assignment and Lender's rights hereunder or otherwise related to the Development Agreement. City hereby agrees (a) not to contest or impede the exercise by Lender of any right it has under or in connection with this Assignment; and (b) that it shall give at least ninety (90) days prior written notice to Lender of its intention to require Developer cure any defect, exercise its {00087203} reversionary interest in the Property, or enforce any of its rights under the Development Agreement. City further agrees and hereby does subordinate its interest in the Development Agreement and in the Property subject to the Development Agreement to the mortgage interest held by Lender. 3. Termination. At such time as the Loan is paid in full and the security instruments are released, this Agreement and all of Lender's right, title and interest hereunder with respect to the Development Agreement shall terminate. 4. Financing Statements; Failure to Perfect. Developer authorizes Lender to file a UCC financing statement, a copy of this Agreement, as well as continuation statements, to perfect and maintain perfection of Lender's security interest with the Black Hawk County Recorder's Office and the Secretary of State for the state of Iowa. Failure of Lender to protect, preserve, maintain or continue any security interest shall not in any way diminish, waive, release, restrict, limit, bar or estop enforcement of Lender's rights under this Agreement or applicable law, nor give rise to any defense with respect thereto (including but not limited to mitigation of damages). 5. Developer's Covenants. Developer hereby covenants with Lender that during the term of the Development Agreement: (a) Developer shall not transfer the responsibility for development of the Property to any other person or entity without prior written notification to Lender and the prior written consent of Lender, which consent may be withheld by Lender in Lender's sole discretion; (b) Developer shall not terminate or amend any of the terms or provisions of the Development Agreement without the prior written consent of Lender, which consent may be withheld by Lender in Lender's sole discretion; (c) Developer shall not grant a security interest in the Development Agreement to any third -party; and (d) Developer shall not breach any term or obligation of the Developer under the Development Agreement. 6. Developer's Representations and Warranties. With respect to the Development Agreement, Developer acknowledges, agrees, represents, warrants and promises to Lender that: (a) Developer shall promptly take whatever actions are requested by Lender to effect attachment of, to perfect and continue attachment and perfection of Lender's security interest in the Development Agreement. Upon request of Lender, Developer will promptly deliver to Lender any and all of the documents evidencing or constituting the Development Agreement, and Developer will note Lender's interest upon any and all chattel paper and instruments if not delivered to Lender for possession by Lender. (b) The execution and delivery of this Agreement will not violate any law or agreement governing Developer or to which Developer is a party, and its certificate or articles of incorporation and bylaws, or certificate or articles of organization and operating agreement, do not prohibit any term or condition of this Agreement. (c) Developer represents and warrants to Lender that Developer holds good and marketable title to the Development Agreement, free and clear of all liens, encumbrances, charges and claims of third persons. {00087203} 2 (d) There is no agreement that has been made under which any deductions or discounts may be claimed concerning the Development Agreement. (e) Developer has not assigned or granted a security interest in any or all of the Developer's rights in the Development Agreement to anyone other than Lender (except security interests to be released as of the date hereof). 7. Default. Each of the following shall constitute an Event of Default under this Agreement without action, election or notice by Lender: (a) Payment Default. Developer fails to make any payment, in full, when due under the Note or any document securing the Note, or when otherwise due with respect to the Loan. (b) Non -Payment Defaults. Developer fails to observe, comply with or perform any other term, obligation, covenant or condition contained in this Agreement, the Development Agreement, the Note or in any document securing the Note. 8. Rights and Remedies on Default. If an Event of Default occurs under this Agreement, at any time thereafter and subject only to the cure provisions, Lender shall provide such notice to the City in writing, and thereafter may exercise all rights, titles, interest, privileges, powers, benefits and remedies of Developer in the Development Agreement. 9. Lender's Obligations/Indemnity. The Lender shall have no obligation to perform or satisfy any duty or obligation of Developer under the Development Agreement. Developer shall and does hereby agree to indemnify, defend and hold the Lender harmless from and against and in respect of any and all actions, causes of action, suits, claims, demands, judgments, proceedings and investigations (or any appeal thereof or relative thereto or other review thereof) of any kind or nature whatsoever, arising out of, by reason of, as a result of or in connection with the Development Agreement, and any and all liabilities, damages, losses, costs, expenses (including fees of counsel and expenses and disbursements of counsel), amounts of judgment, assessments, fines or penalties, and amounts paid in compromise or settlement, suffered, incurred or sustained by Lender as a result of, or reason of or in connection with any of the matters above. 10. Governing Law. This Agreement shall be governed, construed, applied and enforced in accordance with the laws of the state of Iowa. Developer and Lender consent to jurisdiction and venue of the appropriate state or Federal Court for Black Hawk County, Iowa for any matter arising out of this Agreement. 11. Notices. All notices required or permitted hereunder shall be given to the addresses set forth on the first page of this Agreement in the manner as provided in the Mortgage. 12. No Oral Change. This Agreement, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Developer or Lender, but only by an agreement in writing signed by {00087203} 3 the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. 13. Liability; No Assumption. This Agreement shall be binding upon and inure to the benefit of Developer and Lender and their respective successors and assigns forever and shall run with the land. Nothing in this Agreement shall release the Developer or the personal guarantor Benjamin Stroh from any of their obligations under the Development Agreement. It is understood and agreed that the Lender does not assume any of the obligations or duties of the Developer concerning the Development Agreement. 14. Inapplicable Provisions. If any term, covenant or condition of this Agreement is held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision. 15. Interpretation. Any ambiguity in or dispute regarding the interpretation of this Agreement shall not be resolved by rule of interpretation providing for interpretation against Lender. 16. Headings. The headings and captions of various paragraphs of this Agreement are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof. 17. Attorneys' Fees; Expenses. Developer shall be responsible for, and shall immediately pay upon demand all of Lender's costs and expenses, including Lender's reasonable attorneys' fees and Lender's legal expenses, as and when incurred by or charged to Lender in connection with the enforcement of this Agreement and protection and enforcement of Lender's rights hereunder or in connection herewith, without regard to approval or confirmation of such amounts by a court. Lender may hire or pay someone else to help enforce this Agreement, and Developer shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction, appeals, and any anticipated post judgment collection services). Developer also shall pay all court costs and such additional fees as may be directed by a court. All amounts owed hereunder shall become part of the Loan as and when they are incurred by or charged to Lender. 18. Number and Gender. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. 19. Counterparts. This Agreement may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Agreement. The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. 20. Miscellaneous. The granting of the assignment hereunder authorizes the City of Waterloo, Iowa to communicate directly with Lender and to make payments under the {00087203} 4 Development Agreement directly to Lender upon written receipt of an Event of Default by Developer. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. IN WITNESS WHEREOF the undersigned has executed this Agreement as of the date and year first written above. DEVE i PER: By: Nam Title: B. Stroh Man., ger, North Crossin CITY: CITY OF WATERLOO, IOWA By: 1 Name: Quentin Hart Title: Mayor ATTESTED TO: Kelley Fel hie City Clerk {00087203} 5 , LLC EXHIBIT A Master Development Agreement {00087203} 6